IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR. JUSTICE H.P. SANDESH R.F.A.No.62/2012 BETWEEN:
SRI H.N. RAMAREDDY, S/O LATE NAGAPPA, AGED 60 YEARS, RESIDING AT HARALUR VILLAGE, AGARA POST, VARTHUR HOBLI, BANGALORE EAST TALUK-87. … APPELLANT (BY SRI M.U. POONACHA, ADVOCATE) AND:
1. SRI H.V. NARAYANA REDDY, S/O LATE VENKATAPPA, AGED ABOUT 63 YEARS, RESIDING AT HARALUR VILLAGE, AGARA POST, VARTHUR HOBLI, BANGALORE EAST TALUK-87.
2. SMT. KRISHNAMMA, W/O LATE H.V. RAMAREDDY, AGED ABOUT 60 YEARS, RESIDING AT HARALUR VILLAGE, AGARA POST, VARTHUR HOBLI, BANGALORE EAST TALUK-87. ... RESPONDENTS (BY SRI S.G. PARTHASARATHY, ADVOCATE FOR C/R-2, R-1 SERVED) THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF THE CPC AGAINST THE JUDGMENT AND DECREE DATED 8.11.2011 PASSED IN O.S.NO.8640/2004 ON THE FILE OF THE XXXIII ADDITIONAL CITY CIVIL JUDGE, BANGALORE CITY DISMISSING THE SUIT FOR DECLARATION AND INJUNCTION.
THIS REGULAR FIRST APPEAL COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This appeal is filed challenging the judgment and decree of dismissal dated 8.11.2011 passed in O.S.No.8640/2004, on the file of XXXIII Additional City Civil and Sessions Judge, Bengaluru City.
2. The parties are referred to as per their original rankings before the Court below to avoid the confusion and for the convenience of the Court.
3. The brief facts of the case are that the plaintiff had filed a suit against the defendants for the relief of declaration to declare that the plaintiff is the absolute owner in possession and enjoyment of the suit schedule property having derived the right, title and interest by virtue of partition deed dated 15.7.1959 and release deed dated 22.12.2003 and for an order of injunction restraining the defendants, or their agents, or servants or anyone else claiming through or under them from interfering with the peaceful possession and enjoyment of the suit schedule property.
4. The property involved in the suit is described as all that piece and parcel of the land being a portion of property bearing house list No.20 (New No.17) measuring East to West 42 feet and North to South 31 feet in all measuring 1302 sq. ft. situated at Haralur Village, Varthur Hobli, Bangalore East Taluk, which is morefully described in the schedule.
5. It is the contention of the plaintiff that the deceased Nagappa and Venkatappa are the sons of deceased Ramakka. The plaintiff is one of the son of Nagappa, while defendant No.1 and husband of defendant No.2 Sri H.V. Ramareddy are the sons of Venkatappa. The plaintiff’s joint family consisting of plaintiff and the family members owned several properties and the plaintiff had instituted a suit bearing number O.S.No.4856/1992 along with his brother against other members of the joint family for permanent injunction restraining the defendants therein from interfering with possession and enjoyment of the suit schedule properties in that suit which had fallen to the share of the plaintiffs therein. Subsequently, joint family members have entered into compromise, wherein they have partitioned several items of the property amongst themselves. In the said settlement entered into between family members, the other joint family members have executed a release deed in favour of Sri H.N. Rama Reddy, the plaintiff herein releasing their right, title and interest in respect of the items of property mentioned in the said release deed and with regard to item No.3 of the schedule mentioned in the said release deed. Therefore, the plaintiff herein has become the absolute owner thereof in respect of item No.3 of the schedule mentioned in the release deed. The said property originally measured east to west 60 feet and north to south 62.5 feet in all measuring 3,750 sq.ft. The schedule property had originally fallen to the share of Ramakka, grandmother of the plaintiff by virtue of earlier family arrangement. In fact in the said partition Ramakka was given life interest in the suit schedule property which formed item No.3 of the said partition deed of 1959. It is also stated therein that after the death of Ramakka in respect of the house property which is described in the schedule herein, should go to father of the plaintiff herein, namely Nagappa. Since Nagappa died, plaintiff being the son of Nagappa and by virtue of the release deed dated 22.12.2003, became the owner of the suit schedule property. Though it is mentioned in the release deed that the property measures east to west 60 feet and north to sough 62.5 feet, in fact the actual measurement of the suit property is east to west 42 feet and north to south 31 feet. The same is also reflected in the Village Panchayath records and tax demand register extract. The defendants herein are interfering with his peaceful possession and enjoyment of the said property and therefore it necessitated him to file present suit for the relief of declaration and injunction.
6. Defendant Nos.1 and 2 entered appearance through their counsel and filed common written statement contending that the suit filed by the plaintiff is false, frivolous and vexatious. It is also contended that the plaintiff had earlier filed O.S.No.4856/1992 and the same was dismissed. Being aggrieved by the same, R.F.A.No.748/1998 was filed before the Hon’ble High Court, which also came to be dismissed. Therefore, these facts clearly disclose that the plaintiff is not in possession and enjoyment of the suit schedule property. The alleged release deed executed in favour of the plaintiff has been concocted for the purpose of this suit and defendant No.2 is in possession of the suit schedule property for the last 35 years. The revenue documents also stand in the name of defendant No.2. It is admitted that there was a partition deed dated 15.7.1959 but denied the release deed dated 22.12.2003. Hence, prayed the Court to dismiss the suit.
7. Based on the pleadings, the Court below framed the following issues:
1. Whether the plaintiff proves that he became the absolute owner in possession of the suit schedule property in view of the release deed dated 22.12.2003?
2. Whether the defendants prove that they are in possession and enjoyment of the suit schedule property since 35 years as contended?
3. Whether the plaintiff is entitled to the relief of declaration and permanent injunction sought for?
4. What order and decree?
8. The plaintiff in order to prove his case examined himself as P.W.1 and got marked the documents at Exs.P.1 to 7. The plaintiff also examined one witness as P.W.2. On behalf of the defendants, one witness is examined as D.W.1 and got marked the documents at Exs.D1 to 9. The Court below after having heard the arguments of the learned counsel for the plaintiff and the learned counsel for the defendants and considering the material on record, dismissed the suit. Hence, the present appeal is filed before this Court.
9. The main contention of the plaintiff in this appeal is that there is no dispute with regard to the partition deed dated 15.7.1959 between the joint family members and in order to substantiate the said partition deed, P.W.2 is also examined. The Court below also has given the finding that there was no dispute with regard to the partition deed. The Court below failed to take note of the fact that the suit schedule property belonged to Ramakka in terms of the partition deed and life interest was created and after her death, it should go to the father of the plaintiff herein. When the partition deed is clear, the very claim of the defendants that they are in possession of the suit schedule property based on the revenue entries cannot be accepted. The Trial Court observed that without seeking the relief of possession, mere seeking the relief of declaration, the Court cannot grant the relief of decree of declaration and injunction. The very approach of the Trial Court is erroneous.
10. In support of his contentions, the learned counsel for the appellant relied upon the judgment of the Hon’ble Supreme Court in the case of ANATHULA SUDHAKAR v. P. BUCHI REDDY (DEAD) BY L.RS AND OTHERS reported in AIR 2008 SC 2033, and brought to the notice of this Court the principles laid down in the judgment with regard to possession. It is held therein that in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession. It is also held therein that where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.
11. The learned counsel also relied on the judgment in the case of NANJEGOWDA @ GOWDA (D) BY LRS. AND ANOTHER v. RAMEGOWDA reported in 2018 (1) Kar.L.R.
284 (SC) and brought to the notice of this Court paragraph No.23 of the judgment. It reads as follows:
"23. In our opinion, it is a clear case where the plaintiff and the defendants being members of the family got their share in the family properties through an oral partition effected among their ancestral members of family and on their deaths to the surviving members by inheritance, i.e., the plaintiff and defendants. So far as the suit land is concerned, it fell into the share of plaintiff's ancestors, which was evidenced by an oral partition duly acted upon for a long time back in 1935 and then on the plaintiff.”
By referring this judgment, he would contend that when the partition was taken place between the joint family members, the Court has to take note of the possession which is de jure possession. Hence, the very finding of the Trial Court is erroneous.
12. On the other hand, the learned counsel for the respondents – defendants in his argument vehemently contended that the defendants are in possession of the suit schedule property from last 35 years and all the revenue records are standing in the name of the defendants. The Court below having considered both oral and documentary evidence rightly came to the conclusion that the plaintiff is not entitled for the relief of declaration and injunction and also made an observation that the plaintiff has not been in possession and without seeking better relief of declaration and possession, the suit is not maintainable. Hence, prayed this Court to dismiss the appeal.
13. Having heard the arguments of the learned counsel for the appellant and the learned counsel for the respondents with regard to their respective contentions, the points that arise for the consideration of this Court are:
(i) Whether the Court below has committed an error in dismissing the suit of the plaintiff by coming to the conclusion that the suit which had been filed earlier by the plaintiff was dismissed and thereafter the plaintiff did not seek the relief of declaration of possession and whether it requires interference of this Court?
(ii) What order?
Points (i) and (ii):
14. Having considered the rival contentions of both the parties and also on considering the material available on record, admittedly, there is no dispute with regard to the partition effected between the respective brothers and the mother in the year 1959. The partition deed is also marked as Ex.P.1. The parties in the suit have also not disputed the said document dated 15.7.1959. The counsel appearing for the plaintiff also brought to the notice of this Court that in terms of the said document of partition, the suit schedule property is allotted to the share of Ramakka. He also brought to the notice of this Court that a life interest was created in favour of Ramakka and after her death the property should go to the father of the plaintiff. The very contention of the defendants is that the suit schedule property is in their possession and the revenue records are standing in their name.
15. D.W.1 in his cross-examination admits the document of Ex.P.1. In the cross-examination no doubt he disputed the very life interest created in favour of Ramakka and thereafter it should go to the father of the plaintiff. The oral evidence excludes the documentary evidence of Ex.P.1. On perusal of Ex.P.1, it is clear that the suit schedule property is allotted to the share of Ramakka and life interest is created and after her death, it should go to the father of the plaintiff. Even though the defendants dispute the said fact, but document is very clear and in the cross-examination of D.W.1, he did not dispute the partition between the family members. The Court below also while assigning the reasons came to the conclusion that there was no dispute with regard to the partition between the family members. It is also observed that the said document of partition is established, since there was no dispute.
16. The records also reveal that the plaintiff has examined one witness as P.W.2 with regard to the partition document. When there is no dispute with regard to the document, even though there was no need to examine him, however as an abundant caution, the witness was examined as P.W.2. When the Trial Court comes to the conclusion that when there was no dispute with regard to the partition deed and in terms of the partition deed, the property which is the subject matter of the issue between the parties when the same was allotted in favour of Ramakka and thereafter after her death it should go to the father of the plaintiff, the Trial Court ought not to have dismissed the suit. The reason assigned by the Trial Court is that earlier the plaintiff had filed a suit against the defendants and the same was dismissed. On perusal of the records, it is clear that that is only a suit of bare injunction and the same was dismissed and thereafter an appeal was filed and the same was also dismissed. The Court below while passing the order in the judgment at page 22, paragraph No.20 made an observation that O.S.No.4856/1992 has become final and further observed that the plaintiffs have utterly failed to establish prima facie case when the suit was dismissed. The plaintiffs have to file the suit for declaration, possession and partition. When the plaintiffs are not in possession of the properties, the question of granting permanent injunction in favour of the plaintiffs does not arise. Further observation made in the order is that the suit of the plaintiff is hit by Order 2 Rule 2 of CPC and the said observation is also erroneous. In suit for relief of injunction any number of injunction suit can be filed based on the fresh recurring cause of action and invoking of Order 2 Rule 2 of CPC is erroneous.
17. The other observation of the Court below is with regard to the possession is concerned that mere seeking relief of declaration of title and permanent injunction without seeking relief of possession in respect of suit schedule property is also erroneous. The reason of the Trial Court is that the plaintiff has not sought for the relief of possession, cannot be accepted. Admittedly, the suit schedule property originally belonged to the family property and they were in joint possession and there was a partition amongst the family members in the year 1959 and the property in question was allotted to the share of Ramakka. In the partition deed, it is specific that a life interest was created in favour of Ramakka and thereafter the property should go to the father of the plaintiff. The defendants are claiming right in respect of the suit schedule property based on the revenue documents. The revenue documents cannot confer any right in favour of the defendants. When the defendants did not dispute the very fact of allotting the property in favour of Ramakka and life interest created in her favour and after her death, it should go to the father of the plaintiff, the Court below has failed to consider the fact that the suit schedule property is a joint family property and there was a partition effected in the family and in the said partition the property was allotted in favour of the plaintiff’s father after the death of Ramakka. The very observation of the Trial Court that without seeking the relief of possession mere seeking relief of declaration, is erroneous.
When the parties are in joint possession and the property belongs to the joint family, the principles laid down in the case of NANJEGOWDA (supra) is aptly applicable to the case on hand. The Supreme Court has made it clear that where the plaintiff and the defendants being members of the family got their share in the family properties through an oral partition effected among their ancestral members of family and on their deaths to the surviving members by inheritance, i.e., the plaintiff and defendants. So far as the suit land is concerned, it fell into the share of plaintiff's ancestors, which was evidenced by an oral partition duly acted upon for a long time. In the case on hand also, when the property belongs to the joint family and when there was a partition among the family members and also when life interest was created in favour of Ramakka and subsequent to her death when the property fell to the share of the father of the plaintiff and when the parties are not disputing Ex.P.1 – document of partition amongst themselves and claiming their shares based on their partition in respect of the other properties also, the Trial Court has committed an error in coming to such a conclusion and hence it requires interference of this Court.
18. The very finding of the Trial Court is not based on the material available on record. Even though the Trial Court comes to the conclusion that there is no dispute with regard to partition deed amongst the family members, but committed an error in proceeding in an erroneous direction coming to the conclusion that possession was not sought from the defendants and hence the very impugned judgment and decree is liable to be set aside.
19. In view of the discussions made above, I pass the following:
ORDER (i) The appeal is allowed.
(ii) The impugned judgment and decree dated 8.11.2011 passed in O.S.No.8640/2004, on the file of XXXIII Additional City Civil and Sessions Judge, Bengaluru City, is set aside.
(iii) The suit of the plaintiff is decreed, as prayed for.
(iv) The parties to bear their own cost.
Sd/- JUDGE MD